We previously reported on New Jersey’s “mode of operation” in connection with Prioleau v. Kentucky Fried Chicken.  Depending on the facts, establishing the mode-of-operation  may allow a plaintiff to avoid the typical notice requirement that is usually needed to recover for an accident caused by a hazardous condition at a commercial establishment. Instead, this legal analysis focuses on the manner in which the defendant conducts its business.  Recently, in Romeo v. Harrah’s Atlantic City Propco, LLC, the mode-of-operation theory was applied in favor of the defendant, but even that ruling was insufficient to warrant summary judgment.

Plaintiff Romeo slipped and fell on a spilled liquid on a Harrah Casino walkway. Video surveillance captured the spill — only four minutes prior to the plaintiff’s fall. At the time of the accident, Harrah’s had a policy of inspecting the common areas every 30-40 minutes. Harrah’s argued that there was insufficient time between the spill and the plaintiff’s fall to establish constructive notice, nor was there any evidence that the liquid came from a Harrah’s patron, and thus moved for summary judgment. In response, the plaintiff argued that Harrah’s practice of providing free drinks and bottles of water, as well as placing vending machines in common areas, entitled him to relief from the notice requirement.

The court held that Harrah’s mode of operation (providing drinks and vending machines) did not relieve plaintiff from establishing notice.  However, the very surveillance system that Harrah’s relied upon ultimately defeated its bid for summary judgment. Between the time of the spill and the plaintiff’s fall, a casino supervisor was seen in the area of the liquid for a few moments — walking away without cleaning the spill. At the deposition of the corporate designee, it was revealed that all Harrah’s employees are instructed to take notice of and remedy any hazardous conditions.

In denying summary judgment, the court determined that it was a question of fact for a jury to decide whether a four minute span, in the face of a supervisor in the immediate area of the spill and a company-wide directive for all Harrah’s employees to inspect hazards, was sufficient to satisfy the plaintiff’s burden of establishing notice.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.